An Aversion to the Death Penalty, but No Shortage of Cases

By ALAN FEUER

Published: March 10, 2008

CORRECTION APPENDED

They are an ignominious bunch: two Bronx heroin dealers who murdered an informant, a father and son who killed three people in a drug deal, a Brooklyn gangster hired in the killing of a husband for the victim's wife.

These five men are linked not only by the nature of their crimes but by the fact that federal juries in New York decided that they should not be put to death.

In the 20 years since the federal death penalty statute was revived, no federal juries have been more reluctant to sentence federal defendants to death than those in New York. According to records compiled by the Federal Death Penalty Resource Counsel Project, which coordinates the defense of capital punishment cases, federal prosecutors in New York State have asked juries to impose death sentences 19 times since 1988. In only one case did a jury rule for execution.

Nationwide, federal prosecutors win death penalties about one-third of the time, according to the group's statistics.

But despite this track record, the cases have not stopped coming: In Brooklyn alone, there are six more capital cases on the docket this year, including those of a reputed Mafioso and of two men charged with killing Guyanese immigrants to collect their life insurance policies. The first of these trials -- of Gilberto Caraballo, a Brooklyn drug dealer convicted last month of murdering two rivals -- will enter its so-called penalty phase on Monday.

Federal judges in New York have gone so far as to call some death penalty cases a waste of time and money. Last week, Judge Jack B. Weinstein of Federal District Court in Brooklyn told prosecutors that their chances of obtaining a death sentence against a drug dealer charged with dismembering two rivals were ''virtually nil'' and issued an order in which he said he was waiting for the Justice Department to reconsider whether to pursue an execution.

Officials in the federal prosecutors' offices in Brooklyn and Manhattan, as well as the Department of Justice in Washington, declined to comment on their record in death penalty cases.

Lawyers and other experts in the field say that a variety of reasons underpin New York's status as a tough sell in death penalty cases. They say that there is a fundamental liberal slant to juries in the state, and that New York has some of the best death penalty defense lawyers in the country.

They also say many victims in New York capital cases are unsavory characters: drug dealers, mobsters or members of street gangs -- not the sort of people whose killers are likely to be punished with death.

''New York has the worst batting average in the country,'' said Kevin McNally, a defense lawyer in Kentucky and the director of the Federal Death Penalty Resource Counsel Project. Federal juries in Connecticut and New Jersey have never ruled for death since 1988, but only three cases have gone before juries in those two states.

Mr. McNally said that statistics in federal death penalty cases tended to mirror those in state cases, and that in places like Virginia, Mississippi and Texas, where the state death penalty is active, there were also more death sentences imposed in the federal courts. (New York's death penalty statute was effectively invalidated in 2004 by the state's highest court.)

Ephraim Savitt, a defense lawyer in New York who has handled several capital cases, said that New York jurors ''fancy themselves as liberal,'' adding ''Ultimately we have a very cosmopolitan, eclectic, heterogeneous population, and the death penalty requires unanimity.'' In federal courts, as in some states, all 12 members of the jury must approve the death penalty.

Mr. Savitt was the lead lawyer for Ronell Wilson, a Staten Island gang member sentenced to die last year in the only imposition of the federal death penalty in New York since 1954, when Gerhard Puff, a bank robber, was executed for killing an F.B.I. agent. The victims in the Wilson case, two undercover police detectives, were crucial in the jury's decision, both Mr. Savitt and Mr. McNally said. Crucial and unusual, they added, in that the detectives were perceived as ''innocent'' and ''good.''

''Not many New York cases have 'innocent victims,' '' Mr. McNally said. He added that white female victims, for example, were ''death in a bottle for defense lawyers.''

Mr. Wilson's case is on appeal. Only three people have been executed under the revived federal death penalty: Timothy McVeigh, the Oklahoma City bomber, in 2001; Juan Raul Garza, a drug dealer who killed three other drug traffickers in Texas, in 2001; and Louis Jones Jr., who kidnapped, raped and killed a 19-year-old female soldier in Texas in 2003.

The question of whether to pursue the death penalty in a federal case typically begins with a special committee within the United States attorney's office in each federal district (New York has four; Connecticut and New Jersey, one each). The committee makes a recommendation to the Department of Justice in Washington, where the attorney general must sign off on the case.

Correction: March 22, 2008, Saturday
An article on March 10 about the reluctance of federal juries in New York State to impose the death penalty referred incorrectly to Mississippi's record. The federal death penalty has not been imposed in any cases in Mississippi in the 20 years since the penalty was revived.